Ram Lal vs Sadhu

R.S. Pathak, C.J.—This is a Plaintiff''s revision petition u/s 115 of the CPC against an order of the learned Senior Subordinate Judge, Solan, refusing an amendment of the plaint.

The Plaintiff filed a suit for recovery of Rs. 5,436 alleging that the Defendant had borrowed a sum of Rs. 4,000 on May 8, 1970, from him and had executed a promissory note and receipt, that the Defendant had failed to pay the amount, and, therefore, the present suit.

In his written statement, the Defendant denied the loan and also pleaded that the promissory note was not admissible in evidence for want of proper stamp.

The Plaintiff then applied for amendment of the plaint under Order 6, Rule 17 of the Code. By the proposed amendment he intended to delete the claim made on the basis of the promissory note and the receipt and instead to base his claim on the original consideration of Rs. 4,000.

The learned Senior Subordinate Judge has rejected the amendment application, and now this revision petition.

After hearing learned Counsel for the parties, it seems to me that the learned Senior Subordinate Judge is right.

The plaint recites that the loan was taken on the basis of the promissory note. There is no plea that there was an earlier separate loan agreement and that the promissory note has been executed merely as evidence of that loan or as a collateral security. The case of the Plaintiff evidently is that the loan and the promissory note constitute a single indivisible transaction.

Plainly, the promissory note constitutes the sole basis on which the Plaintiff''s suit must be considered. I am supported in this view by Amin Chand v. F. Madho Ram Banwari Lal and Ors. 1954 P.L.R. 502. In T.S. Sriniwasa Gowda v. Siddiah AIR 1971 Mys 144, the Mysore High Court took the view that where a loan is advanced simultaneously with the execution of a promissory note and forms part of the same transaction the Plaintiff can sue only on the promissory note.

The cases relied on by the Plaintiff may be noticed here. In Sheo Nath Prasad Vs. Sarjoo Nonia and Another, a Full Bench of the Allahabad High Court held that in the case of a promissory note executed contemporaneously with the loan the Plaintiff on failure of the cause of action based on the promissory note could fall back on the independent cause of action in debt assuming that the particular circumstances of the transaction admit of an independent cause of action on the original debt still surviving. This view was followed by a subsequent Full Bench of the same court in Major Mistri Vs. Mt. Binda Debi, The two cases are distinguishable, because in the case before me the loan and the promissory note constitute a single indivisible transaction, and therefore, it is not open to the Plaintiff to fall back on the debt. In Globe Theatres Ltd. v. Khan Saheb Abdul Gani and Anr. AIR 1956 Mys 57 , the negotiable instrument was a mere claim to an earlier transaction and not the basis of the transaction itself, and therefore, the Mysore High Court held that a suit on the original consideration could be instituted. In S.A.S. Lakshmanan Chettiar Vs. T.K. Kuruvilla, the Kerala High Court allowed the Plaintiff to rely on the original. debt in circumstances which showed that the Defendant had admitted the loan. The Orissa High Court in Chandra Sekhar Misra Vs. Gobinda Chandra Das, affirmed the view that if the plaint in a suit based on the promissory note stated that it was based on the original transaction of loan and not on the promissory note, the Plaintiff should be permitted to rely on the loan itself. That view was re-affirmed by the court in Baishnaba Charan Acharyya and Another Vs. Nityananda Satapathy, As is apparent from the facts of the present case none of these decisions can be of any assistance to the Plaintiff.

Accordingly, the revision petition fails and is dismissed but in the circumstances there is no order as to costs.